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Employment Law Updates

The latest employment law news & updates from Kalra Legal Group
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Commission Criticises Use of Non-Disclosure Agreements in Sexual Harassment Cases

The use of non-disclosure agreements by employers in cases of alleged sexual harassment has been heavily criticised by the Equality and Human Rights Commission, which described them as silencing the voices of victims. 

Sexual Harassment

The Commission defines sexual harassment as ‘unwanted conduct of a sexual nature, which is intended to, or has the effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them’.

It highlights that even if unwanted conduct is not intended to cause distress, it can still have the effect of violating a person’s dignity or creating an offensive environment. Whether or not unwanted sexual conduct violates a person’s dignity or creates an offensive environment depends on the victim’s perspective and whether their reaction is reasonable in all the circumstances.

Commission’s Recommendations

The Commission has published a set of recommendations to help provide better protection at work, including calling on the Government to introduce legislation preventing employers from using non-disclosure agreements to protect themselves from sexual harassment allegations.

It has also called for the time limit to bring a claim of sexual harassment to tribunal to be extended to six months, reflecting the time taken by many individuals to raise complaints.

Other recommendations from the Commission include:

  • Asking the Government to:
    • implement a new positive legal duty on employers to take effective steps to prevent harassment or victimisation in the workplace; the duty will be enforceable by the Commission
    • produce a statutory code of practice that sets out the steps employers need to take to comply with this duty, with a possible 25% uplift in compensation when an employer breaches the code
    • strengthen protection for those harassed by customers and clients
    • collect data from individuals across England, Scotland and Wales every three years to determine the prevalence and nature of sexual harassment and produce an action plan to address the problems revealed
  • Asking employers to:
    • be transparent and publish their separate sexual harassment policy and steps being taken to implement and evaluate it in an easily accessible part of their external website so their current and potential employees are clear about how this important issue is being addressed.

Under the Equality Act 2010, employers are liable for acts of sexual harassment by one employee towards another unless they have taken all reasonable steps to prevent it. There are currently no minimum requirements, but reasonable steps should include an anti-harassment policy and appropriate procedures for reporting harassment and taking action.

“No woman should face humiliation, intimidation or harassment at work,” commented Sam Smethers, Chief Executive of equality organisation Fawcett Society. “Sadly it’s becoming increasingly clear not only that it’s an all too common experience but that far too many employers are turning a blind eye or even silencing victims of harassment.”

“It’s time for employers to demonstrate proactively how they will protect their staff and prevent sexual harassment,” she added. “The first step is to give women the confidence to come forward and then genuinely listen to them when they do, instead of preventing them speaking out or hoping money will make the problem go away. It won’t.”

Inquiry Looks at Use of Non-Disclosure Agreements

Parliament’s Women and Equalities Committee has also recently turned its attention to the use of non-disclosure agreements as part of its ongoing inquiry into sexual harassment at work.

It notes that while the use of these agreements may be justifiable in certain employment situations, such as protecting intellectual property or trade secrets, this is not the case in sexual harassment cases where they are used by employers to hide discriminatory or illegal behaviour.

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For expert legal advice on these issues, and other areas of employment law, then contact our specialist employment lawyers today.

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